Bostic v. Tennessee Department of Corrections et al
Filing
9
MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 7/23/2018. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES E. BOSTIC,
Plaintiff,
v.
TENNESSEE DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
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NO. 3:18-cv-00562
JUDGE CAMPBELL
MAGISTRATE JUDGE HOLMES
MEMORANDUM
Plaintiff James E. Bostic, an inmate of the Bledsoe County Correctional Complex in
Pikeville, Tennessee, filed this pro se action under 42 U.S.C. § 1983 against the Tennessee
Department of Corrections (TDOC); TDOC Warden f/n/u Settles; TDOC Commissioner Tony
Parker; Contracting Nurse f/n/u Darrius; Contracting Nurse f/n/u Auston; BCCX Prison Facility;
BCCX Sergeant Jay Yearwood; Patricia Aldridge; Tashonda Burton; City of Nashville; and Dr.
f/n/u Dillion, alleging violations of Plaintiff’s civil and constitutional rights. (Doc. No. 1).
Plaintiff also filed an application to proceed in forma pauperis. (Doc. No. 2).
The complaint is before the Court for an initial review pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A.
I.
Three Strikes Analysis
Before the Court can screen the complaint pursuant to the PLRA, the Court must determine
whether Plaintiff will be permitted to seek pauper status in this action, given his previous litigation
history in federal court. The PLRA was enacted to implement “constraints designed to prevent
sportive filings in federal court,” Skinner v. Switzer, 562 U.S. 521, 535 (2011), and provides the
following under Section 1915(g) with respect to prisoner-plaintiffs:
1
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g). In other words, a prisoner-plaintiff who falls within the scope of Section
1915(g) because of three or more previous “strikes” must pay the entire filing fee at the outset of
the case, unless he or she is under imminent danger of serious physical injury. Wilson v. Yaklich,
148 F.3d 596, 603-04 (6th Cir. 1998), cert. denied, 525 U.S. 1139 (1999).
Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g) because he
has, on at least three prior occasions, filed a civil action or an appeal that has been dismissed for
failure to state a claim upon which relief could be granted.
1
To fall within the statutory exception to the “three-strikes” rule, a prisoner must allege that
the threat or prison condition is “real and proximate” and that the danger of serious physical injury
exists at the time the complaint is filed. See Rittner v. Kinder, 290 Fed. Appx. 796, 797-98 (6th
Cir. 2008) (citation omitted). A prisoner’s assertion that he faced danger in the past is insufficient
to invoke the exception. Id. Therefore, pursuant to Section 1915(g) of the PLRA, Plaintiff may
pursue the instant action as a pauper only if he is under imminent danger of serious physical injury.
1
See Bostic v. Corrs. Corp. of Am., et al., Civil Action No. 3:06-0041 (M.D. Tenn.) (dismissed for failure to state a
claim on 1/19/06), aff’d on appeal, No. 06-5249 (6th Cir. 10/12/06); Bostic v. Metro. Public Defender’s Office, et al.,
Civil Action No. 3:05-0455 (M.D. Tenn.) (dismissed for failure to state a claim on 6/9/05); Bostic v. Metro. Public
Defender’s Office, et al., Civil Action No. 3:05-1014 (M.D. Tenn.) (dismissed as frivolous on 11/30/05).
The Court notes that, in his complaint, Plaintiff represents that he has not filed “any other lawsuits in the
United States District Court for Tennessee or in any other state or federal court.” (Doc. No. 1 at 1). It is unclear
whether Plaintiff mistakenly checked the wrong box; however, Plaintiff is advised that “[a] district court can impose
sanctions if a party knowingly files a pleading containing false contentions.” Hood v. Tompkins, 197 F. App’x 818,
819 (11th Cir. 2006) (per curiam); Gabriella-Valenzuela v. Corizon Health Headquarters, No. 3:18-cv-00432 (M.D.
Tenn. filed 5/7/2018) (Doc. No. 5 at 3).
2
The complaint alleges that Plaintiff suffers from chronic obstructive pulmonary disease
(COPD), lung disease, asthma, hypertension, epilepsy, nerve pain in his feet, and an unspecified
eye problem. The complaint further alleges that, since Plaintiff’s arrival to the Bledsoe County
Correctional Complex on November 18, 2016, Defendants have not provided Plaintiff with
medication for these conditions and refuse to give him access to any medical treatment for these
conditions. (Doc. No. 1 at 8-9).
For example, Plaintiff alleges that he should be receiving
breathing treatments, but Defendants have refused to provide them. (Id. at 8).
On April 6, 2018, Plaintiff requested a “sick call” and was seen by Defendant nurse Darrius.
Darrius told Plaintiff that she was not going to check his blood pressure or weight and was going
to discontinue Plaintiff’s “chronic care” because Plaintiff had made a “false report for blood
pressure medication . . . .” (Id. at 11). Dr. Dillion then discontinued Plaintiff’s blood pressure
medication without Plaintiff’s knowledge or consent, alleging that Plaintiff had refused his blood
pressure medication. (Id. at 15). Plaintiff denies that he has ever refused his blood pressure
medication and believes that Darrius and other medical staff personnel lied to Dr. Dillion. (Id.)
Plaintiff states that he “stops breathing in [his] sleep because of [his] COPD condition.
This is serious.” (Id. at 9). Plaintiff also states that he is in pain. (Id. at 12-13). He further states
that he has blood in his stool, “which could be colorectal cancer, or colon cancer” and Defendants
have “misdiagnosed” him with hemorrhoids. (Id. at 15). On April 6, 2018, Plaintiff filed a
grievance raising his concerns about his medical treatment but he has not received a response. (Id.
at 18).
The imminent-danger exception is a pleading requirement subject to the ordinary principles
of notice pleading. Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013). Under
this standard, the plaintiff must “allege[ ] facts from which a court, informed by its judicial
3
experience and common sense, could draw the reasonable inference that [he] was under an existing
danger at the time he filed his complaint.” Id. (internal quotation marks and citation omitted). To
support a finding of sufficiently imminent danger, “the threat or prison condition must be real and
proximate and the danger of serious physical injury must exist at the time the complaint is filed.”
Id. (citing Rittner v. Kinder, 290 Fed. Appx. 796, 797 (6th Cir. 2008)). “Thus a prisoner's assertion
that he or she faced danger in the past is insufficient to invoke the exception.” Id. (citations
omitted). In an unpublished opinion, the Sixth Circuit has held that “[f]ailure to receive adequate
treatment for potentially life-threatening illnesses . . . clearly constitutes ‘imminent danger’ under
the [PLRA].” Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562–63 (6th Cir. 2011) (citing Ibrahim
v. District of Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006) (holding that “failure to provide adequate
treatment for Hepatitis C, a chronic and potentially fatal disease, constitutes ‘imminent danger’”)).
In a later, published opinion in a case filed by the same plaintiff, the Court reaffirmed that “a
plaintiff who alleges a danger of serious harm due to a failure to treat a chronic illness or condition
satisfies the imminent-danger exception under § 1915(g).” Vandiver v. Prison Health Servs., Inc.,
727 F.3d 580, 587 (6th Cir. 2013). The Sixth Circuit explained:
[A] plaintiff who alleges a danger of serious harm due to a failure to
treat a chronic illness or condition satisfies the imminent-danger
exception under § 1915(g), as incremental harm that culminates in a
serious physical injury may present a danger equal to harm that
results from an injury that occurs all at once. We reject the notion
that the inclusion of the word “imminent” in § 1915(g) allows us to
grant IFP status only after a plaintiff's condition has deteriorated
such that the next instance of maltreatment would result in a serious
physical injury. Imposing such a restriction would ignore the
progressive and worsening nature of injuries often associated with
chronic illness and would result in unnecessary suffering by those
afflicted with these conditions. We thus believe that for the purposes
of § 1915(g), an individual afflicted with a chronic illness that left
untreated would result in serious injury faces imminent danger when
the illness is left untreated.
4
Id. at 587.
Some courts have rejected a requirement that the district courts scrutinize the seriousness
of the continuing injury before granting a three-striker leave to proceed in forma pauperis. For
example, in Ciarpaglini v. Saini, 352 F.3d 328 (7th Cir. 2003), the plaintiff alleged imminent
danger resulting from the defendants' wrongful discontinuation of his medication for attention
deficit hyperactivity disorder and panic disorder. The court rejected the defendant's assertion that
the plaintiff's claims were “not serious enough,” stating:
[Section] 1915(g) is not a vehicle for determining the merits of a
claim. To follow the [defendant's] logic, a district court would not just need
to determine whether a prisoner is alleging some type of ongoing or
imminent harm. It would also need to fine-tune what is “serious enough” to
qualify for the exception. Is being denied heart medication? What about a
cholesterol-lowering drug? How frequently do beatings need to occur
before they are serious? This would result in a complicated set of rules about
what conditions are serious enough, all for a simple statutory provision
governing when a prisoner must pay the filing fee for his claim. This is not
required, and so we find that the district court erred in concluding that [the
plaintiff's] complaint didn't meet the imminent danger exception.
Id. at 331. Accord Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (“[A]lthough the feared
physical injury must be ‘serious,’ ‘we should not make an overly detailed inquiry into whether the
allegations qualify for the exception,’ because § 1915(g) ‘concerns only a threshold procedural
question’. . . .” (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007))).
In a civil rights action filed in the Northern District of Florida, the prisoner-plaintiff had
accrued at least three strikes under the PLRA and alleged that should be allowed to proceed in
forma pauperis because, among other ailments, he suffered from COPD and bronchitis and, during
his five-year incarceration, he had not been provided adequate medical treatment for his
conditions. Stearnsmiller v. Florida, No. 5:09cv215/RS-EMT, 2009 WL 5067668, at *1 (N.D.
Fla. Dec. 17, 2009).
The court rejected the plaintiff’s argument, noting that, “with regard to
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Plaintiff’s respiratory issues, he acknowledges in one of his filings that he received ‘respiratory
therapy’ when he was previously housed at the Reception Medical Center, which suggests that
treatment for his respiratory condition is available and has been previously provided to him at that
institution.” Id. at *6 n.2.
Although the present case presents a close call, the Court finds that Plaintiff's contention
that Defendants have refused any medical treatment or medication for his chronic medical
conditions (specifically, COPD) adequately alleges facts supporting an inference that Plaintiff is
in imminent danger of serious physical injury for purposes of the threshold inquiry required by 28
U.S.C. § 1915(g). Unlike the Stearnsmiller plaintiff, Plaintiff alleges that he has been denied any
treatment at all for his COPD for a two-year period, including a recent breathing treatment. Cf.
Jones v. Clement, No. 3:16-cv-257-PLR-CCS (E.D. Tenn. Feb. 22, 2017) (finding that plaintiff
had “sufficiently alleged that he faced imminent danger of serious physical injury” due to
allegations that prison doctors failed to adequately treat him for pain related to his Crohn’s disease,
a chronic illness); Patterson v. Corrs. Corp. of Am., No. 1:16-cv-0005, 2016 WL 540710, at *3
(M.D. Tenn. Feb. 11, 2016) (Sharp, J.) (holding that plaintiff’s allegation that defendants failed to
provide any medical treatment for inmate’s diagnosed broken toe and that inmate has continuing
severe pain and numbness in his toe as well as continuing leg and back pain supports an inference
that plaintiff is in imminent danger of serious physical injury); Freeman v. Collins, No. 2:08-cv71, 2011 WL 1397594, at *6 (S.D. Ohio April 12, 2011) (holding that the failure to treat allegedly
severe chronic pain may satisfy the imminent danger requirement under specific circumstances);
Perez v. Sullivan, 2005 WL 3434395, at *2 (W.D. Wis. Dec. 13, 2005) (same); but cf. Cruse v.
Corr. Med. Assocs., 1:16CV68-LG-RHW, 2016 WL 7477554, at *2 (S.D. Miss. Dec. 29, 2016)
(finding that prisoner with COPD had not alleged imminent danger of serious physical injury
6
where prisoner alleged he was being “overmedicated with Ibruprofen” but simply disagreed with
the course of his treatment; prisoner also alleged the jail where he was housed was “unsafe”
because “the ceiling is embedded with black mold in which [sic] is very dangerous to Plaintiff
because [of] his chronic C.O.P.D. disease” but court found “there is nothing in the record which
shows that the exacerbation [of his COPD] was related to mold or other alleged conditions at the
jail.”). Therefore, the Court determines that Plaintiff qualifies for the imminent danger exception
to the three strikes rule and will be permitted to seek pauperis status in this action.
II.
Letters to the Court
After he filed his complaint, Plaintiff mailed three letters to the Court. (Doc. Nos. 5, 6, 8).
The third letter (Doc. No. 8) provides additional context for the claims raised in the original
complaint. No new defendants or claims are added.
The first and second letters detail allegations not contained in the original complaint. In
the first letter, Plaintiff alleges that certain individuals began retaliating against Plaintiff after he
filed this action. (Doc. No. 5). According to Plaintiff, these individuals are intentionally blocking
his efforts to be transferred to “the annex.” (Id. at 2). In the second letter, Plaintiff alleges that
he is not being given all the pre-trial jails credit to which he is entitled. (Doc. No. 6). The Court
construes the first and second letters as motions to amend the complaint.
Rule 15(a) (2) of the Federal Rules of Civil Procedure states that leave to amend should be
freely given “when justice so requires.” In deciding whether to grant a motion to amend, courts
should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the
opposing party, and futility of amendment. Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d
996, 1001 (6th Cir. 2005).
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A prisoner's claim that prison officials have retaliated against him for engaging in
protected conduct is grounded in the First Amendment. Thaddeus-X v. Blatter, 175 F.3d 378, 388
(6th Cir. 1999). To establish a prima facie case of retaliation within the context of Section 1983,
a plaintiff must prove that: (1) he engaged in protected conduct; (2) an adverse action was taken
against him that would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) the defendant’s conduct was substantially motivated at least in part by retaliation
for the plaintiff’s protected speech and conduct. Id. at 394-99.
With regard to Plaintiff’s proposed retaliation claims, filing a federal lawsuit is protected
conduct under the First Amendment. Plaintiff alleges in his first motion to amend that certain
individuals retaliated against him after he filed this action by refusing to transfer him to the annex.
However, in the original complaint, Plaintiff alleges that he is eligible for transfer to the annex but
his attempts to be transferred have been ignored, denial, or thwarted by counselor and guards.
(Doc. No. 1 at 21). In other words, Plaintiff already was claiming that certain individuals were
blocking his efforts to be transferred to the annex prior to filing this action. Thus, Plaintiff cannot
establish that the proposed defendants’ conduct was substantially motivated at least in part by
retaliation for Plaintiff filing this action because these and other individuals were engaging in the
same conduct before Plaintiff initiated this action. See id. at 394-99. Because Plaintiff’s proposed
retaliation allegations would fail to state claims under Section 1983 upon which relief can be
granted, allowing Plaintiff to amend his complaint to assert such retaliation claims would be futile.
Consequently, Plaintiff’s first motion to amend (Doc. No. 5) will be denied.
In his second motion to amend (Doc. No. 6), Plaintiff asserts that he has not been credited
with all of the pre-trial jail credits to which he is entitled. According to Plaintiff, with the correct
credits applied, the “expiration date” of Plaintiff’s sentence “would be right now approximately
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June 2020 and my sentence would expire approximately Nov. 2019 next year.” (Id. at 3). Plaintiff
asks for the credits to be applied or for an award of damages against TDOC individuals. (Id. at 5).
The law is well established that “habeas corpus is the exclusive remedy for a state prisoner
who challenges the fact or duration of his confinement . . . even though such a claim may come
within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481 (1994)(citing Preiser v.
Rodriguez, 411 U.S. 475, 488-90 (1973))(emphasis added). A Section 1983 claim challenging
confinement must be dismissed even where a plaintiff seeks only injunctive or monetary relief.
Heck, 512 U.S. at 489-90 (claim for damages is not cognizable); Preiser, 411 U.S. at 488-90 (claim
for injunctive relief is only cognizable under 28 U.S.C. § 2254). Additionally, a state prisoner
does not state a cognizable claim under Section 1983 where a ruling on his claim would imply the
invalidity of his conviction and/or confinement, unless and until the conviction has been favorably
terminated, i.e., reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus. Heck, 512
U .S. at 486-87; Ruff v. Runyon, 258 F.3d 498, 502 (6th Cir. 2001). The United States Supreme
Court extended Heck to bar Section 1983 actions that do not directly challenge confinement, but
instead challenge the procedures that imply unlawful confinement. Edwards v. Balisok, 520 U.S.
641, 648 (1997).
Here, any relief to which Plaintiff might be entitled under Section 1983 with regard to his
proposed claims concerning his sentence computation would be predicated on an affirmative
showing that his sentence was, in fact, computed improperly. Under Heck, Plaintiff cannot seek
such relief until and unless a federal or state court resolves the sentence computation issue in
Plaintiff’s favor. Because Plaintiff’s concerns regarding the constitutionality of his continued
confinement must be brought in a petition for writ of habeas corpus, permitting Plaintiff to amend
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his civil rights complaint to allege such claims would be futile. Consequently, Plaintiff’s second
motion to amend (Doc. No. 6) will be denied.
The Court will screen the original complaint, as informed by Plaintiff’s third letter to the
Court (Doc. No. 8), pursuant to the PLRA, 28 U.S.C. §§ 1915(e)(2) and 1915A. Going forward,
however, Plaintiff is advised that he cannot litigate this action or any action in this Court by way
of notices or letters to the Court. Even though Plaintiff is proceeding pro se and the Court will
take into consideration his pro se status when evaluating pleadings and pending motions, Plaintiff
still is required to comply with the rules governing this case. These rules exist to ensure fairness
to all parties. If Plaintiff wishes for the court to consider arguments and evidence, he must raise
them by way of timely and properly filed motions.
III.
PLRA Screening Standard
Having determined that Plaintiff, who has accumulated at least three strikes under 28
U.S.C. § 1915(g), successfully has demonstrated that he is under imminent danger of serious
physical harm, the Court will now screen Plaintiff’s pro se complaint pursuant to the PLRA.
Under 28 U.S.C. § 1915(e)(2)(B), a court must dismiss any portion of a civil complaint
filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or
seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly
requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity,” id. § 1915A(a), and
summary dismissal of the complaint on the same grounds as those articulated in Section
1915(e)(2)(B). Id. § 1915A(b).
10
The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme
Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), “governs dismissals for failure to state a claim under those statutes because the relevant
statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470–71
(6th Cir. 2010). Thus, to survive scrutiny on initial review, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must
(1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded
factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir.
2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
A court must construe a pro se complaint liberally, United States v. Smotherman, 838 F.3d
736, 739 (6th Cir. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and accept the
plaintiff’s factual allegations as true unless they are entirely without credibility. See Thomas v.
Eby, 481 F.3d 434, 437 (6th Cir. 2007) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)).
Although pro se pleadings are to be held to a less stringent standard than formal pleadings drafted
by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require us
to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation
omitted).
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IV.
Section 1983 Standard
Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color
of state law, abridges “rights, privileges, or immunities secured by the Constitution and laws . . .
.” To state a claim under Section 1983, a plaintiff must allege and show two elements: (1) that
he was deprived of a right secured by the Constitution or laws of the United States; and (2) that
the deprivation was caused by a person acting under color of state law. Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009)(quoting Sigley v. City of Panama Heights, 437 F.3d 527,
533 (6th Cir. 2006)); 42 U.S.C. § 1983.
V.
Alleged Facts
In addition to the allegations concerning the lack of medical treatment, see Section 1 supra,
the complaint alleges that Plaintiff is eligible for transfer to the annex and has been recommended
by the Warden for transfer but certain Defendants intentionally are preventing his transfer. (Doc.
No. 1 at 21-22, Doc. No. 8 at 2). According to Plaintiff, inmates housed in the annex are eligible
for work release programs. (Doc. No. 1 at 22). The complaint also alleges that Plaintiff would
like to be moved to another prison but the classification supervisor and counselor refuse to assist
Plaintiff in seeking a transfer to another prison. (Doc. No. 8 at 2). Finally, the complaint alleges
that guards kept Plaintiff at “site one overnight on 3/19/18” instead of site two. (Id.)
VI.
Analysis
A.
Claims based on Plaintiff’s failure to be transferred to the annex or another
prison
The complaint alleges that Plaintiff’s rights are being violated because Defendants refuse
to transfer him to the annex or to another prison. The complaint also alleges that, on one occasion,
Plaintiff was housed overnight in “site one” instead of “site two.” However, inmates have no
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constitutional right to be confined in any particular prison. Olim v. Wakinekona, 461 U.S. 238
(1983); Hewitt v. Helms, 459 U.S. 460, 468 (1983) (superseded by statute on other grounds);
Meachum v. Fano, 427 U.S. 215, 224 (1976); Beard v. Livesay, 798 F.2d 874, 876 (6th Cir. 1986).
It follows, then, that inmates have no constitutional right to be confined to a particular part of a
prison. Thus, the complaint fails to state Section 1983 claims upon which relief can be granted
against any Defendant based on his or her failure to transfer Plaintiff because Plaintiff has no
constitutional right to choose his site of imprisonment.
Plaintiff apparently seeks, at least in part, to be transferred to the annex because inmates
housed there are eligible for work release programs. However, prisoners have no constitutionally
cognizable right to participate in rehabilitative or educational programs. See Rhodes v. Chapman,
452 U.S. 337, 348 (1981); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Canterino v. Wilson,
869 F.2d 948, 952-54 (6th Cir. 1989); Kenner v. Martin, 648 F.2d 1080, 1081 (6th Cir. 1981) (per
curiam); Carter v. Corrs. Corp. of Am., No. 98-6336, 1999 WL 427352, at *1 (6th Cir. June 15,
1999). Thus, as to these allegations, the complaint fails to state a Section 1983 claim upon which
relief can be granted, and this claim must be dismissed.
B.
Denial of medical care claims
The complaint alleges that Defendants have refused to give him access to any treatment for
several medical conditions, including COPD, lung disease, asthma, hypertension, epilepsy, nerve
pain in his feet, an unspecified eye disorder, and blood in his stool. (Doc. No. 1 at 8-9). The
complaint names as Defendants TDOC, Warden Settles, TDOC Commissioner Parker, Nurses
Darrius and Auston, BCCX Prison Facility, BCCX Sergeant Yearwood, Aldridge, Burton, City of
Nashville, and Dr. Dillion.
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1.
Defendants Yearwood, Parker, Aldridge, and Burton
A plaintiff must identify the right or privilege that was violated and the role of the defendant
in the alleged violation. Miller v. Calhoun Cnty., 408 F.3d 803, 827 n.3 (6th Cir. 2005); Dunn v.
Tenn., 697 F.2d 121, 128 (6th Cir. 1982). Other than being listed as Defendants on pages five and
six of the complaint, Yearwood, Parker, Aldridge, and Burton are not mentioned in the narrative
of the complaint. (See Doc. No. 1 at 8-9). Because Plaintiff does not allege the personal
involvement of Yearwood, Parker, Aldridge, or Burton in the events set forth in the complaint,
Plaintiff has not established a basis for imposing individual liability on these Defendants. See Rizzo
v. Goode, 423 U.S. 362, 371 (1976); Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir.
2012).
To the extent that Plaintiff seeks to impose liability on these Defendants because of their
supervisory positions, supervisory officials, who are aware of the unconstitutional conduct of their
subordinates but fail to act, generally cannot be held liable in their individual capacities. Grinter
v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Gregory v. City of Louisville, 444 F.3d 725, 751
(6th Cir. 2006); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd.
of Educ., 76 F.3d 716, 727-28 (6th Cir. 1996). A failure to take corrective action in response to
an inmate grievance or complaint does not supply the necessary personal involvement for Section
1983 liability. See George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Ruling against a
prisoner on an administrative complaint does not cause or contribute to the [constitutional]
violation. A guard who stands and watches while another guard beats a prisoner violates the
Constitution; a guard who rejects an administrative complaint about a completed act of misconduct
does not.”). Because the complaint does not allege that any of these Defendants were directly
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responsible for any of the alleged violations of Plaintiff’s rights, the claims against Yearwood,
Parker, Aldridge, and Burton must be dismissed.
2.
BCCX Prison Facility and TDOC
Next, the complaint names the “BCCX Prison Facility” as a Defendant to this action. (Doc.
No. 1 at 2). However, the Bledsoe County Correctional Complex is a building and not a “person”
or legal entity that can be sued under 42 U.S.C. § 1983. Cf. Fuller v. Cocran, No. 1:05-CV-76,
2005 WL 1802415, at *3 (E.D. Tenn. July 27, 2005) (dismissing Section 1983 claims against the
Bradley County Justice Center on the same basis); Seals v. Grainger County Jail, No. 3:04CV606,
2005 WL 1076326, at *1 (E.D. Tenn. May 6, 2005) (“The Grainger County Jail, however, is not
a suable entity within the meaning of § 1983.”).
To the extent the prison is sued in its official capacity because it is a state prison operated
by TDOC, the prison is immune from suit. The Eleventh Amendment to the United States
Constitution bars Section 1983 claims against a State or any arm of a State government. Will v.
Mich. Dep't of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L.Ed.2d 45 (1989). A suit against
the facility is in reality a suit against TDOC itself. TDOC, which Plaintiff also names as a
Defendant, is considered part of the State of Tennessee for purposes of federal civil rights claims
and therefore is not a suable entity under Section 1983, either for damages or injunctive relief. See
Hix v. Tenn. Dep't of Corrs., 196 F. App'x 350, 355 (6th Cir. 2006) (“The TDOC is not a ‘person’
within the meaning of § 1983, and is therefore not a proper defendant.”) (citing Will v. Mich. Dep't
of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)). Thus, Plaintiff’s
Section 1983 claims against the BCCX Prison Facility fail to state claims upon which relief can
be granted and, consequently, must be dismissed. Plaintiff’s claims against TDOC must be
dismissed because TDOC is immune from suit.
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3.
City of Nashville
Municipalities are not subject to liability for the deprivation of civil rights under the
doctrine of respondeat superior. Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691, 98 S.
Ct. 2018, 56 L. Ed. 2d 611 (1978). Municipalities may be liable under Section 1983 for
deprivations of civil rights when the deprivation resulted from the “execution of a policy or
custom” of the municipality. Id. at 694, 98 S. Ct. 2018. “[A] plaintiff bringing a § 1983 claim
against a municipality must therefore identify the policy or custom that caused her injury.” Ford
v. Cnty. of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008). “A ‘custom’ for purposes of Monell
liability must be so permanent and well settled as to constitute a custom or usage with the force of
law.’” Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 507 (6th Cir.1996) (quoting Monell, 436 U.S.
at 691, 98 S. Ct. 2018); see also Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S.
397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) (“[A]n act performed pursuant to a ‘custom’
that has not been formally approved by an appropriate decisionmaker may fairly subject a
municipality to liability on the theory that the relevant practice is so widespread as to have the
force of law.”) (citations omitted).
Once a custom is identified, a plaintiff must “show that the municipal action was taken
with the requisite degree of culpability.” Bd. of Cnty. Comm'rs, 520 U.S. at 404, 117 S. Ct. 1382.
“The plaintiff must . . . demonstrate that, through its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged.” Id. The municipality must have “intentionally” deprived
the plaintiff of a federally protected right. Id. at 405, 117 S .Ct. 1382. Finally, the “plaintiff must
also show a direct causal link between the custom and the constitutional deprivation; that is, she
must show that the particular injury was incurred because of the execution of that policy.”
Claiborne Cnty., 103 F.3d at 508 (citation omitted).
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Here, the complaint fails to allege that Plaintiff’s injuries were caused by action taken
pursuant to a City of Nashville official policy or custom, which is required for Plaintiff to state a
claim upon which relief can be granted. See Thomas, 55 Fed. Appx at 749 (citing Monell, 436
U.S. 658, 691).
Furthermore, the complaint does not tie the City of Nashville to any of the
allegations for which Plaintiff seeks relief. Consequently, the Court finds that the complaint fails
to state a municipal liability claim against the City of Nashville.
4.
Warden Settles
As to Warden Settles, the complaint alleges that he “is legally responsible for [Plaintiff’s]
welfare and all [his] problems [he’s] having while in his custody.” (Doc. No. 1 at 23). The
complaint further alleges that Warden Settles “is also responsible for the unlawful acts [and]
behavior of the TDOC staff[], employees, contractors named in this complaint . . . .” (Id.) These
claims appear to be based solely on Settles’s role as Warden; Plaintiff does not allege that the
Warden had direct participation in health care decisions regarding any particular inmate, including
Plaintiff. A Section 1983 plaintiff must identify the right or privilege that was violated and the
role of the defendant in the alleged violation, Miller, 408 F.3d at 827 n.3, and Plaintiff has failed
to do so with respect to Warden Settles.
To the extent that Plaintiff is attempting to hold the Warden liable for the conduct of his
subordinates, “[g]overnment officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). “[A] plaintiff must plead that each Government-official defendant, through the official's
own official actions, violated the Constitution.” Iqbal, 556 U.S. at 676. There must be a showing
that the supervisor encouraged the specific instance of misconduct or in some other way directly
participated in it. At a minimum, a Section 1983 plaintiff must show that a supervisory official at
17
least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of
the offending subordinates. See Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (citation
omitted).
The complaint does not allege that the Warden encouraged any instance of misconduct
related to Plaintiff or was otherwise directly involved in it. Neither does the complaint allege that
Warden “implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct” of a subordinate. Id. Simply, there are no allegations in the complaint connecting
Warden to Plaintiff’s health care in any way other than the fact that he is the warden of the facility
where Plaintiff is incarcerated. Consequently, the complaint fails to state Section 1983 claims
upon which relief can be granted as to Defendant Warden Settles. These claims will be dismissed.
5.
Dr. f/n/u Dillion and Nurses Darrius and Auston
The complaint alleges that the remaining Defendants have denied and continue to deny
Plaintiff medical treatment for COPD, lung disease, asthma, hypertension, epilepsy, nerve pain in
his feet, and an unspecified eye problem. The complaint also alleges that Defendants have denied
Plaintiff appropriate medical treatment for blood in his stool.
Failure to provide medical care, including care for mental health conditions, may give rise
to a violation of a prisoner’s rights under the Eighth Amendment. The United States Supreme
Court has held that deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Brooks v. Celeste, 39 F.3d 125, 127 (6th Cir. 1994). A claim
of deliberate indifference to a prisoner’s medical needs under the Eighth Amendment has both an
objective and subjective component. Rouster v. Cnty. of Saginaw, 749 F.3d 437, 446 (6th Cir.
2014). A plaintiff satisfies the objective component by alleging that the prisoner had a medical
18
need that was “sufficiently serious.” Id. (quoting Farmer, 511 U.S. at 834). A plaintiff satisfies
the subjective component “by alleging facts which, if true, would show that the official being sued
subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact
draw the inference, and that he then disregarded that risk.” Id. Deliberate indifference “entails
something more than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by
something less than acts or omissions for the very purpose of causing harm or with knowledge that
harm will result.” Id.
Under these standards, “a complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a constitutional violation merely because the
victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429
U.S. at 106.
In addition, the Sixth Circuit distinguishes “between cases where the complaint
alleges a complete denial of medical care and those cases where the claim is that a prisoner
received inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976).
Where “a prisoner has received some medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.” Id. A prisoner’s difference of opinion
regarding diagnosis or treatment also does not rise to the level of an Eighth Amendment violation.
Estelle, 429 U.S. at 107. In sum, generally speaking, “[w]hen a prison doctor provides treatment,
albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to
the prisoner's needs, but merely a degree of incompetence which does not rise to the level of a
constitutional violation.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
19
For purposes of the required PLRA screening, the Court that the medical conditions about
which Plaintiff complains, including his allegations of constant pain and ceasing to breathe while
sleeping due to his COPD, constitute sufficiently serious medical needs. See Rouster, 749 F.3d at
446.
As to Dr. Dillion, Darrius, and Auston’s state of mind, the complaint alleges that these
Defendants “know about [his] conditions[,] infections[,] ect [sic] and know[] what can happen as
the conditions get worse without treatment and proper treatment . . . .” (Doc. No. 1 at 10, 14-15).
According to Plaintiff, these Defendants “are intentionally ignoring [his] needs for care . . . .” (Id.)
The complaint further alleges that these Defendants discontinued Plaintiff’s “chronic care,” which
the Court understands to be ongoing care for Plaintiff’s chronic condition or conditions, for invalid
and unlawful reasons. (Id. at 11-16). The Court finds that these facts as alleged by Plaintiff give
rise to an inference of deliberate indifference on the part of these Defendants except as to Plaintiff’s
allegations concerning blood in his stool. Because Plaintiff states in his complaint that Defendants
“misdiagnosed” Plaintiff with hemorrhoids, Plaintiff’s allegations concerning Defendants’ denial
of medical care for the blood in Plaintiff’s stool reflect a dispute over the adequacy of treatment
or a difference of opinion regarding diagnosis or treatment, neither of which rises to the level of
an Eighth Amendment violation. Westlake, 537 F.3d at 860 n.5.
Consequently, the Court finds that the complaint sets forth non-frivolous Eighth
Amendment claims under Section 1983 against Dr. Dillion and nurses Darrius and Auston in their
individual capacities based on the denial of medical treatment for Plaintiff’s serious medical needs.
VII.
Conclusion
In conclusion, Plaintiff, who has accumulated at least three strikes under 28 U.S.C. §
1915(g), successfully has demonstrated that he is under imminent danger of serious physical harm;
thus, Plaintiff will be permitted to seek pauper status in this action. The Court construes Plaintiff’s
20
letters to the Court (Doc. Nos. 5 and 6) as motions to amend the complaint, which the Court will
deny.
Having screened the complaint pursuant to the PRLA, the Court finds that the complaint
states colorable Eighth Amendment claims under Section 1983 against Dr. Dillion and nurses
Darrius and Auston in their individual capacities based on the denial of medical treatment for
Plaintiff’s serious medical needs. These claims will proceed for further development. However,
Plaintiff’s remaining claims are subject to dismissal for failure to state a claim for which relief
may be granted.
28 U.S.C. § 1915A. These claims and defendants, therefore, will be dismissed.
28 U.S.C. § 1915(e)(2).
An appropriate Order will be entered.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE
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